A. The First Amendment presumption of access

Overview

The U.S. Supreme Court consistently has recognized that the public and press have a presumptive First Amendment right of access to judicial proceedings in criminal cases, finding that “a presumption of openness inheres in the very nature of a criminal trial under our system of justice.” Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 573 (1980) (plurality opinion). It has not directly addressed whether the public and the press also have a constitutional right of access to civil proceedings, though the California Supreme Court noted that “every lower court opinion of which we are aware that has addressed the issue of First Amendment access to civil trials and proceedings has reached the conclusion that the constitutional right of access applies to civil as well as to criminal trials.” NBC Subsidiary (KNBC-TV), Inc. v. Superior Court, 980 P.2d 337, 358 (Cal. 1999). Some circuits also have recognized a constitutional right of access to court records, with one noting that “the public and press have a first amendment right of access to pretrial documents in general.” Associated Press v. District Court, 705 F.2d 1143, 1145 (9th Cir. 1983).

When considering whether a constitutional presumption of access applies to particular proceedings or records, courts apply the “logic and experience test,” also called the “Press-Enterprise test.” The test considers “whether the place and process have historically been open to the press and general public,” and “whether public access plays a significant positive role in the functioning of the particular process in question.” Press-Enterprise Co. v. Superior Court (Press-Enterprise II), 478 U.S. 1, 8 (1986) (citations omitted).

Kansas

Closure of Kansas court proceedings is allowed “‘only if (i) the dissemination of information from the pretrial proceeding and its record would create a clear and present danger to the fairness of the trial, and (ii) the prejudicial effect of such information on trial fairness cannot be avoided by any reasonable alternative means.”’ Kansas City Star Co. v. Fossey, 630 P.2d 1176, 1182 (Kan. 1981), quoting Fair Trial and Free Press: Standard 8-3.2 of the American Bar Association's Standing Committee on Association Standards for Criminal Justice (August, 1978).

The state supreme court said:

There is almost universal agreement among the courts and writers who have considered the issue that access to court proceedings should be limited only in exceptional circumstances. It has been said that the reason for requiring all court proceedings to be open, except where extraordinary reasons for closure are present, . . . is to enhance the public trust and confidence in the judicial process and to insulate the process against attempts to use the courts as tools for persecution.

Id. at 1181.

The public interest in access to courts, according to the supreme court, “‘is at least as strong as the first amendment policy against prior restraints.”’ Id. at 1183, quoting the ABA Standards.